The Libertarian

Vin Suprynowicz

FREEZING FREE SPEECH

In Washington state last November, citizens placed on the ballot Initiative 912, intended to repeal the new gasoline tax increase approved by the 2005 state Legislature.

On a local radio station, KVI 570, talk show hosts John Carlson and Kirby Wilbur began discussing the campaign to repeal the gasoline tax. To the politicians running San Juan County and the cities of Kent, Auburn, and Seattle, those discussions sounded a bit one-sided. In fact, the politicians drew the conclusion that the radio guys actually favored citizens going to the polls and voting to repeal the new tax hike!

This upset the bosses, who (it’s safe to assume) don’t like the idea of mere peasants going to the polls and directly telling their masters how much loot they can skim. “The municipalities stood to gain millions (in Seattle’s case, billions) of dollars in transportation projects funded by bonds guaranteed by the gas tax revenues,” explains the public interest Institute for Justice, which has subsequently taken an interest in the case.

So the politicians sued the organization that was promoting the tax repeal -- Yes912.com -- under Washington state’s campaign finance law. They contended the radio discussions by Carlson and Wilbur, which favored the tax repeal, were “in-kind contributions” to the initiative campaign, and charged Yes912.com had failed to properly report the monetary value of these contributions.

To file their lawsuit, the municipalities retained the law firm Foster Pepper, a member of (and donor to) Keep Washington Rolling, the outfit campaigning to keep the new tax in place. Just by coincidence, Foster Pepper was also bond counsel to the state, and thus stood to gain additional tens of thousands of dollars in attorneys’ fees for issuing the transportation bonds if Initiative 912 could be defeated.

Incredibly, last July 1, the Thurston County Superior court gave the politicians their wish. The court issued a preliminary injunction ordering Yes912.com to treat media discussions like Wilbur and Carlson’s as reportable campaign contributions. A week before the November elections, the court further threw out a counterclaim that this infringed the I-912 campaign’s rights to free speech and association under the state and U.S. Constitutions.

The implications are stunning.

The reason American politics are so corrupt is not because various parties are free to donate to political campaigns, but because government at all levels has thrown off its constitutional fetters, and now feels free to meddle in a Pandora’s Box of areas from which the founders meant to exclude government, entirely. That’s the reason we have written constitutions, granting limited and specified powers, in the first place.

Yet the politicians -- who don’t want to give up any of this unauthorized power to meddle, to redistribute, to punish or “deliver favors” where they choose -- insist the problem is that “bad people” are somehow allowed to woo them with too much money, and so they cynically enact layer after layer of “campaign finance reform,” which critics have long warned stand in blatant infringement of the donors’ First Amendment right of free speech (in addition to constituting “incumbent protection reform,” since such rules make it even harder for challengers to raise money.)

Well, here’s the proof -- in spades.

Will Washington state next order politicians to report the monetary value of a newspaper endorsement -- or even favorable mentions in political columns -- as a campaign contribution? How will that value be established? What will happen if the assigning of a dollar value to such an endorsement puts that newspaper’s publisher “over the limit” of what he or she was “allowed to donate”?

Will a “wishy-washy” endorsement be charged at half the rate? What about a page of letters to the editor, two-thirds of which favor some political candidate or position? Get out your calculators. What’s it worth to see your opponent called “a syphilitic windbag”?

In such an environment, it’s not far-fetched to assume many publishers and broadcast station owners would simply stop allowing the expression of political opinion -- including letters to the editor. Too much risk.

Heck, better not even report the news if one of the candidates is arrested for a felony. Who on earth can calculate how much THAT might be worth to their opponent?

Not only does this absurdly expose innocent parties to being charged with “violating campaign finance laws” after the fact, it promises to dampen the very kind of political discussion that led the founders to guarantee us a free press, in the first place.

Initiative 912 was defeated at the polls. The Washington politicians preserved their new, add-on gasoline tax. Road tours to Idaho are looking nice, this summer.

But in the only good news to date, the legal case over the radio talk shows is not dead. Yes912.com took the unusual step of appealing the lower court ruling directly to the state Supreme Court, which may directly review such a case if it involves “a fundamental and urgent issue of broad public import which requires prompt and ultimate determination.”

And last week, the Washington state Supreme Court agreed to review the I-912 case on those grounds.

At the very least, the Washington court should rule that the law was misapplied in the case of the KVI radio hosts, who must be allowed free rein to discuss political issues as they see fit, without drawing a punishment either on themselves or on anyone who may be seen to “benefit” from such expressions.

But in fact, if such cases are not to keep reappearing, spreading their chilling effect like a hoarfrost over the political landscape, the court must do a lot more than that.

If the protections of the First Amendment are not to be permanently weakened, courts must begin tossing out these “campaign finance reform” laws in their entirety.

If politicians wish no longer to be bribed to wield inappropriate powers, the solution lies with the politicos themselves. All they need do is approach the microphone and say, “This law may sound like a good idea, but I can find no authorization in our founding document for the government to interpose itself in such matters. Therefore I will vote neither yeah nor nay on the proposal, but rather demand that it be ruled out of order as being unconstitutional on its face. So all those people lurking in my office waiting room with bags of money to bribe me to vote one way or the other can just go home.”